The proliferation of smartphones, social media applications like Instagram, Snapchat and TikTok, and even dating applications such as Tinder, Bumble and Grindr, has resulted in a sharp rise of Teen Sexting allegations and criminal charges in New York and elsewhere.
In New York, it is a crime to send or receive sexual images of a boy or girl under the age of 17. It is also a crime to possess sexual depictions of a boy or girl who is younger than 16 even if they are never sent to another person.
Finally, no matter a person’s age, it is a crime in New York to send or post Intimate Images of a person without his or her consent. Convictions of felony Teen Sexting charges require registration as a Sex Offender under the Sex Offender Registration Act or SORA.
It is important to note that Teen Sexting crimes are prosecuted when the person who is sending or posting sexual images of a minor is also a minor. So, a teenager who is less than 17 years old can face Teen Sexting charges when the sexual image is of another person who is less than 17.
The Most Common New York Teen Sexting Charges
- New York’s Revenge Porn Law / Unlawful Dissemination or Publication of an Intimate Image
- New York City’s Revenge Porn Law / Unlawful Disclosure of an Intimate Image
- Disseminating Indecent Material to Minors in the First Degree
- Possessing a Sexual Performance By a Child
- Promoting a Sexual Performance By a Child
Teen Sexting Resources
- Teen Sexting Information for Parents and Victims
- Teen Sexting Information for People Charged With a Crime or Under Investigation
New York Teen Sexting Diversion
The punishments for Teen Sexting, which can result in time in prison, a permanent felony criminal record and possible lifetime registration as a Sex Offender under SORA, are harsh. The increase of teenagers facing criminal charges for Teen Sexting in New York gave urgency to creating a diversion program as an escape valve for teenagers who are charged. In 2012, New York created a Teen Sexting Diversion program when it passed. the Cybercrime Youth Rescue Act.
Since 2012, New York has offered a diversion program for teenagers charged with Teen Sexting crimes. This education reform program is available only to defendants who are less than 20 years old and only in cases where the victim/complaining witness is not more than 5 years apart in age from the defendant. Thus, if a person charged is 19, the complaining witness must be at least 14 years old.
New York’s Revenge Porn Law / Unlawful Dissemination or Publication of an Intimate Image
In 2019 New York passed a Revenge Porn law, which is formally called Unlawful Dissemination or Publication of an Intimate Image. Unlike other Teen Sexting charges, there is no minimum age requirement. Unlawful Dissemination or Publication of an Intimate Image, Penal Law Section 245.15, is charged when:
- With intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or publishes a still or video image of such other person, who is identifiable from the still or video image itself or from information displayed in connection with the still or video image, without such other person’s consent, which depicts:
- An unclothed or exposed intimate part of such other person; or
- Such other person engaging in Sexual Conduct (as defined in Penal Law Section 130.00(10); and
- Such still or video image was taken under circumstances when the person depicted had a reasonable expectation that the image would remain private and the actor knew or reasonably should have known the person depicted intended for the still or video image to remain private, regardless of whether the actor was present when the still or video image was taken.
Under New York, Unlawful Dissemination or Publication of an Intimate Image charges, the content of the image can include any naked body part such as a person’s genitals, pubic area, anus or a female’s nipple or any depict any Sexual Conduct. However, a person must be identifiable in the Intimate Image or information displayed in the Intimate Image must identify a person, such as a name or an account name.
New York Revenge Porn charges require that the Intimate Image be Disseminated or Published. Both terms are broadly construed. Under Penal Law Section 250.40(5), Disseminate means “to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.” That means that sending an Intimate Image to a single person via text message, social media direct message or email, satisfies the definition of Disseminate.
Publish, under Penal, Law Section 250.40(6) has 4 different definitions. The 2 that most frequently apply to New York Unlawful Dissemination or Publication of an Intimate Image are “to post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, to make an image or images available to the public” or “Disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public.” That means that posting an Intimate Image to on a social media application, even if the profile is private, would violate New York’s Revenge Porn Law.
New York Unlawful Dissemination or Publication of an Intimate Image charges is classified as a class A misdemeanor. The maximum punishment is 1 year in jail. Registration as a Sex Offender is not a requirement of a conviction of Unlawful Dissemination or Publication of an Intimate Image charges.
New York City’s Revenge Porn Law / Unlawful Disclosure of an Intimate Image
In addition to New York State Law, New York City has a Revenge Porn Law called Unlawful Disclosure of an Intimate Image. Under New York City Administrative Code Section 10-180(b):
- It is unlawful for a covered recipient to disclose an intimate image, without the depicted individual’s consent, with the intent to cause economic, physical or substantial emotional harm to such depicted individual, where such depicted individual is or would be identifiable to another individual either from the intimate image or from the circumstances under which such image is disclosed; or
- It is unlawful for a covered recipient to make a threat to disclose an intimate image, provided that a depicted individual shall be considered to be identifiable where the covered recipient states or implies that such person would be so identifiable.
New York City’s Unlawful Disclosure of an Intimate Image charges are similar to New York State Law. However, the crime Unlawful Disclosure of an Intimate Image is broader than New York State’s Revenge Porn Law because it is illegal to threaten to disclose an Intimate Age under New York City’s Revenge Porn Law. Like Unlawful Dissemination or Publication of an Intimate Image charges, the New York City crime is a class A misdemeanor.
Disseminating Indecent Material to Minors in the First Degree in NYC
Disseminating Indecent Material to Minors in the First Degree, Penal Law Section 235.22, has 2 prongs, allegations of:
- Disseminating graphic images of a minor depicting Nudity or Sexual Conduct or describing or depicting Sexual Conduct in words (without images); and
- Luring (inviting or inducing) a minor to engage in Sexual Conduct
A person could be charged with Disseminating Indecent Material to Minors in the First Degree when he or she:
- Intentionally communicates with a minor;
- Knows the content of the communication that depicts or describes, either in words or images, Actual or Simulated Nudity or Sexual Conduct; and
- Invites or induces the minor to engage in Sexual Conduct, Sexual Contact or to engage in a Sexual Performance
Disseminating Indecent Material to Minors in the First Degree is a class D felony and it is punished by between 2 and 7 years in prison for a first felony conviction. The crime is classified as a sexually motivated offense and a conviction requires registration as a Sex Offender under SORA or the Sex Offenders Registration Act. However, a person charged with Disseminating Indecent Material to Minors in the First Degree could patriciate in New York’s Teen Sexting Diversion program, if he or she meets the eligibility requirements.
For a first felony conviction, any jail sentence would be determinate between 2 and 7 years and followed by a period of post-release supervision between 3 and 10 years. Two other sentencing options, which require a Judge to make certain favorable findings for the person who is convicted are a 1-year jail sentence and up to 5 years of probation.
In addition, freedom of movement is severely restricted if the complaining witness was under 18 when the act occurred or the defendant is designated a level 3 sex offender. Any sentence may require a defendant to stay away from schools and places or people who are under 18 are present, barring prior approval.
New York Possessing a Sexual Performance By a Child
The crime of Possessing a Sexual Performance By a Child, Penal Law Section 263.16, applies to possession of or access to images of Sexual Conduct of any person who is less than 16 years old. If the person in the image is at least 16 years old it does not violate Possessing a Sexual Performance By a Child. However, an image a person who is 16 years old still violates federal law and could lead to charges of Promoting Sexual Performance By a Child or Disseminating Indecent Material to Minors, depending on the allegations.
Possessing a Sexual Performance By a Child is charged when, “knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes Sexual Conduct by a child less than 16 years of age.”
As noted above, a Sexual Performance is any image that contains Sexual Conduct, “actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” The term Possessing has a broad meaning under the law. In New York, Possessing means that a person knowingly has in the Sexual Performance in their possession or control or has knowing access to the Sexual Performance with an intent to view it.
A Possessing a Sexual Performance by a Child charge is a class E felony, although New York’s Teen Sexting Diversion program can be obtained. The crime is punished as a class E felony.
For a first felony conviction, the crime has a minimum prison sentence of 1 to 3 years and a maximum of 1 1/3 to 4 years in jail. But a shorter term in prison or no prison at all is a sentencing possibility. A person is required to register as a Sex Offender for a conviction of Possessing a Sexual Performance by a Child.
Other sentencing options for a conviction of Possessing a Sexual Performance by a Child include: 1 year in jail; a split sentence of up to 6 months in jail and up to 10 years of probation or a 3-year conditional discharge; probation for 10 years; or a 3-year conditional discharge.
New York Promoting a Sexual Performance By a Child
The crime of Promoting a Sexual Performance By a Child, Penal Law Section 263.15, is charged when a person allegedly produces, directs or promotes any performance that includes Sexual Conduct by a boy or girl who is less than 17 years old. To fully understand the elements of the crime, 3 terms should be explained:
- “Promotes” is defined broadly to include acts like lending, delivering, transferring, publishing, distributing, disseminating or an offer to do any of the previous things.
- “Performance” means any video or photograph.
- “Sexual Conduct” means sex of any kind, whether actual or simulated, masturbation and mere exhibition of genitals.
Promoting a Sexual Performance By a Child is a sexually motivated felony. Teen Sexting Diversion is a possibility if a person charged meets the eligibility requirements. For a first felony conviction, a jail sentence would be determinate between 2 and 7 years and followed by 3 to 10 years of post-release supervision. A conviction requires registration as a Sex Offender under SORA. There 2 other sentencing options, if a Judge makes certain favorable findings include:
- 1 year in jail; or
- Probation for 10 years
In addition, there are serious restrictions on one’s freedom of movement if the complaining witness was under 18 when the act occurred or the defendant is designated a level 3 sex offender. A defendant may also be required to stay away from schools and places or people who are under 18 are present, without prior approval.
Teen Sexting and Other New York Sex Crimes
If Disseminating Indecent Material to Minors or Promoting Sexual Performance By a Child is charged based on a recording of the sexual acts between the minor and the person charged, then the act(s) could lead to additional charges. The age of consent for sexual activity in New York is 17 years old.
That means that a person who is less than 17 years old does not have the capacity to consent to sex in New York. Sexual intercourse with a person who is less than 17 is known as statutory rape. New York Sex Crimes linked to allegations of Teen Sexting include:
Some of these crimes depend on the age difference between the defendant and the victim and/or an age threshold for the complaining witness. Even if the person charged is eligible for Teen Sexting Diversion, the program is an unlikely outcome if there are additional Sex Crimes or sexual assault charges. In such cases, a Youthful Offender adjudication may be an option.
Teen Sexting and Youthful Offender Status
As noted above, even a teenager who sends or induces another minor to engage in Sexual Conduct via an electronic form like texting or via social media direct message can be prosecuted. In other words, it is not a defense to Teen Sexting crimes to say that both the person who sent and received an electronic communication with Sexual Conduct were less than 17.
In addition to New York’s Teen Sexting Diversion, teenagers as young as 14 and as old as 19, may be eligible for Youthful Offender adjudication.
The advantage to Youthful Offender adjudications that a teenager will not have the burden of a criminal record. If Youthful Offender status is granted, and it is within the discretion of a judge, then all records are sealed except that law enforcement and state agencies have extremely limited access. In general, to be treated as a Youthful Offender, the youth must:
- Be least 14 and under 19 at the time the alleged crime is committed;
- Have no prior felony convictions; and
- Have never been treated as a Youthful Offender before
Youthful Offender adjudication has many advantages over prosecution as an adult. While a Youthful Offender can still be sentenced to up to 4 years in jail, such sentences are rare. In addition, adjudication as a Youthful Offender record does not result in a criminal record; there is no criminal conviction. Rather, Youthful Offender adjudication does not have to be reported as a criminal conviction on college applications or for work.
New York Teen Sexting and Federal Law
Under New York law, Teen Sexting applies to people who are less than 16 or 17 years old, depending on the allegation. But under federal law, a minor is defined as a person who is less than 18 years old. Thus, allegations of Teen Sexting may violate both New York and federal law Even if a person involved in Teen Sexting is 17 years old, he or she could violate federal law without committing a crime in New York. The punishments for Teen Sexting are harsher under federal law.
Under federal law, it is a crime to use a computer to send, receive, distribute or reproduce any depiction of a minor engaging in Sexually Explicit conduct. Two important federal Teen Sexting laws are:
- Sexual Exploitation of Children, 18 U.S.C. § 2251, involves an allegation of an attempt to induce, persuade or entice a person under the age of 18 to engage in a Sexual Act for the purpose of creating a photo or video. The federal crime is similar to New York Promoting a Sexual Performance By a Child, which applies to children who are less than 17 years old. For a first felony conviction, the federal crime has a mandatory minimum prison sentence of 15 years.
- Transfer of Obscene Material to Minors,18 U.S.C. § 1470, involves an allegation of using or attempting to use any means of interstate or foreign commerce and knowingly transferring the obscene matter to another person who is less than 16 years old, knowing that the person is less than 16 years old. The federal crime is similar to New York Disseminating Indecent Material to Minors in the First Degree. The federal crime has a sentence of up to 10 years in prison without a prior felony conviction.
Teen Sexting and the Sex Offender Registration Act
Teen Sexting is a felony in New York, and a conviction of Promoting a Sexual Performance or Disseminating Indecent Material to Minors in the First Degree requires registration as a Sex Offender under the Sex Offenders Registration Act or SORA. Registration is either for 20 years or life, and the requirements are burdensome, including:
- Reporting a person’s residence frequently;
- Updating a new address within 10 days of a move; and
- Reporting to the local police department for updated photographs
Failure to comply with registration under the Sex Offenders Registration Act requirements is a felony.
The Consequences of Teen Sexting Can Be Serious–Talk to an Attorney Today
Teen Sexting allegations can carry lifelong consequences, even when the act involves nothing more than a teenage boy or girl sending an explicit photo of himself or herself to her teenage friend. If you are facing charges or your child has been accused of one of the above crimes, you can’t afford to leave the outcome to chance or hope that the prosecutor or judge will be sympathetic. If you or your son or daughter is a victim of Teen Sexting there are important steps you can take with the help of an experienced attorney to fight Teen Sexting.
Contact The Law Firm of Andrew M. Stengel
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